The cases of Korematsu, Rasul, Al Odah, and Hamdi are Supreme Court cases that pose challenging constitutional questions in the context of a war. Conflicts between national security and constitutional rights are at the forefront. Unique constitutional questions, such as dealing with enemy combatants (U.S and non-U.S. citizens) captured and held by the United States also arise. Should the constitution give way to security measures and decisions made by the military, legislative branch, or executive branch in wartime, even at the expense of depriving a U.S. citizen of his/her constitutional rights? Should the Supreme Court’s (and individual justices’) interpretational approach and duty to uphold the constitution change or be affected in times of war? These are the conflicts that the cases above consider. In addition, they introduce other dimensions of interpretive judicial review, such as racism in Korematsu and Supreme Court jurisdiction in Rasul. The decisions made in these cases have a major affect on the United States, and in hindsight bad decisions have caused much regret that the entire country has had to atone for.

Korematsu v. U.S.

On December 7, 1941, the Japanese empire bombed the U.S. Navy base at Pearl Harbor by surprise. This, of course, caused anxiety throughout the U.S. and put a stress on how the government would make decisions. Racism and prejudice against Asian Americans was prevalent on the west coast, and this caused many Americans and the government to consider the threat that the Japanese-Americans posed, even though there was no evidence that they had anything to do with the decisions and actions of the Japanese empire. “Economic self interest encouraged radical governmental action against Japanese Americans. Their work ethic had made them tough competitors in farming, fishing, and small business.” (Murphy, Et al, 2003 p.99) This situation offered those who were “threatened” by the Japanese-Americans economically a great solution: if they were made to leave there homes and business, it would remove their competition; all this in the name of “national security.” Franklin Roosevelt finally signed into law a bill making it a crime to be in a military zone designated by a commander. General DeWitt used this to validate an imposed curfew on enemy aliens and Nisei (Japanese-Americans) living in the Pacific states. The military required all persons of Japanese ancestry to report to concentrations camps; however, persons of Italian or German descent were allowed to remain free.

Fred Korematsu, an American citizen of Japanese descent, ignored the order and was convicted. His case went to the Supreme Court and the opinion of the court held up the conviction. Justice Black, delivering the pinion of the court, stated: “It should be noted…that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can…” (J. Black, Korematsu v. U.S./ACI, p.1548) Basically, the opinion of the court, as well as the concurring opinion, state that making racial restrictions is allowed when public security is involved. In this decision they are saying that the military are the experts in national security and if they make a judgment regarding safety, it isn’t necessarily unconstitutional even if the constitution protects a certain right the military decision is violating.

The dissenting opinions bluntly state that the decision of the court is racist. Justice Murphy said: “This exclusion…goes over the very brink of constitutional power and falls into the ugly abyss of racism.” He goes on to say: “ is essential that there be limits to military discretion.” (J. Murphy, Korematsu v. U.S./ACI, P.1551) This dissenting opinion believes that marking all people of Japanese descent as suspect is not a reasonable security measure, and denying U.S. citizens constitutional rights is abhorrent. Justice Jackson further dissents boldly saying, “I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the constitution, or they cease to be civil courts and become instruments of military policy.” (J. Jackson, Korematsu v. U.S./ACI, p.1554.)

I agree with the dissenting opinion. The court opinion overlooked the constitutional rights for the person petitioning and instead made a decision of how the military can ignore the constitution, justified by the state of warfare. The constitution’s purpose is to protect people in these situations, especially in a racial situation such as this one. There is no good reason to suspect U.S citizens of Japanese descent to be traitors just because of their blood. To go further and intern these people, taking them from their homes and lives is disgusting. The Supreme Court did not perform its job to uphold the constitution, and innocent citizens paid the price. Justice Jackson’s dissenting remarks, in my opinion, correspond to Justice Marshall’s decision in Marbury v. Madison. He states: “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.” (J. Marshall, Marbury v. Madison/ACI, pg. 317) The Supreme Court in Korematsu closed its’ eyes to the constitution.

Rasul v. Bush, Al Odah v. U.S.

The cases of Rasul v. Bush and Al Odah v. U.S. deal with the questions of judicial review jurisdiction in the Guantanamo Bay naval base, where over 600 detainees are being held. The petitioners are filing for a writ of habeas corpus, and the question is whether or not the federal courts have jurisdiction to hear the case and extend the writs. Guantanamo Bay is a part of Cuba which is leased out to the United States per a treaty. It claims that the U.S. has “complete jurisdiction and control” but does recognize Cuba’s “ultimate sovereignty.” The opinion of the court held that the federal courts do have jurisdiction over Guantanamo Bay and the petitioners can file for a writ of habeas corpus. The court claims that Eisentrager, a case that set a precedent for situations like this, “itself erects no bar to the exercise of federal court jurisdiction over the petitioners claims to habeas corpus.” (J. Stevens, Rasul v Bush)

I agree with the dissenting opinion, given by Justice Scalia. Justice Scalia basically questions why stare decisis in a statute case would not be followed. He explains that the U.S is not sovereign in Guantanamo Bay, clearly stated by the treaty between Cuba and the U.S. In my opinion, Justice Scalia’s dissent was much more detailed and made more sense than the opinion of the court. He explains the consequences of the courts decision in breaking from stare decisis, which includes having to accompany complaints and suit from enemy combatants from all over the world during times of war, and the prospect of potentially having to ship them to the U.S. for a trial. He also points out that detainees in Guantanamo Bay (U.S. Citizen or not) can have a choice of what federal district will hear their case, whereas a U.S. Citizen living in the U.S. can only have their case heard in their one specific district, inherently giving more rights to non-U.S. citizens. I completely agree that the Supreme Court should have held up the precedent and left the jurisdiction question to Congress instead of legislating from the bench.

Hamdi v.Rumsfeld

The case of Hamdi v. Rumsfeld deals with a U.S. citizen captured as an enemy combatant in a foreign warzone. Hamdi was brought to Guantanamo bay until his citizenship was recognized, and then brought to a South Carolina Navy Briggs. The Supreme Court ruled that Hamdi’s detention was authorized, but did not receive due process to his case; he should receive due process and his case be remanded to the district court. Two Justices’ dissented in part and concurred in part, saying that the detainment was unauthorized, but agreed with his due process. Three Justices dissented to the court’s decision saying that the government had no right to detain Hamdi and should either be set free or charged with a crime.

It took me a while to decide which opinion I agreed with, and I decided to concur with the Court opinion, that his detainment was justified, but he should get due process and have his case heard. His detention was not because of race, as in the Korematsu case, but was based on his own action in combating against the U.S. Hamdi should be entitled to due process since he is an American citizen. Just as we would hold a suspect murderer or criminal caught in an act, or circumstances surrounding a criminal act, we should hold an enemy combatant, even if he is a U.S. citizen. By letting him free he could very well go back to the battlefield; this would not be reasonable in these circumstances. I was almost siding with Justice Scalia’s dissent because of the sharp check it would put on executive power; therefore preventing a wrongful internment. However, the peculiar circumstances of this case reasonably justify executive action, and the court held up the constitutional right for due process.


Korematsu v. United States, 323 U.S. 214 (1944).

Marbury v. Madison, 5 U.S. 137 (1803).

Murphy,W., Fleming, J., Barber, S., Macedo, S. (2003). American Constitutional Interpretation (3rd Edition). New York: Foundation Press.

Rasul et al v. Bush, 542 U.S. __(2004).